People v. David

• Citation: 119 Mich.App. 289,326 N.W.2d 485
• Decision Date: 03 December 1982
• Docket Number: Docket No. 56696
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Timothy Allen DAVID, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 485

326 N.W.2d 485

119 Mich.App. 289

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Timothy Allen DAVID, Defendant-Appellee.

Docket No. 56696.

Court of Appeals of Michigan.

Submitted April 9, 1982.

Decided Sept. 7, 1982.

Released for Publication Dec. 3, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and George B. Mullison, Pros. Atty., for the people.

Patterson, Gruber & Kennedy, Bay City, for defendant-appellee.

Before CAVANAGH, P.J., and MAHER and GLASER ^*, JJ.

CAVANAGH, Presiding Judge.

Defendant was bound over for trial on charges of possession of a controlled substance, M.C.L. Sec. 333.7403; M.S.A. Sec. 14.15(7403), and possession of a controlled substance with intent to deliver, M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401). The trial court suppressed all of the evidence seized pursuant to a search warrant, quashed the information, and dismissed the charges against defendant. The people appeal as of right.

There are two issues on appeal. First, did the affidavit in support of the search warrant establish probable cause to believe that the items sought were on the stated premises? Second, should the exclusionary rule be applied when there is a good-faith violation of the Fourth Amendment?

A search warrant may not be issued by a magistrate unless it is supported by probable cause, which is established by oath or affirmation. U.S. Const., Am. IV, Const.1963, art. 1, Sec. 11, M.C.L. Sec. 780.651; M.S.A. Sec. 28.1259(1). Probable cause consists of facts and circumstances which would warrant a person of reasonable prudence to believe that the items sought are in the stated place. People v. Dinsmore, 103 Mich.App. 660, 674, 303 N.W.2d 857 (1981). Panels of this Court have differed regarding the standard of review to be accorded to a magistrate's determination of such probable cause; the determination has been entitled to either "great deference" or has been upheld absent an "abuse of discretion". Dinsmore, supra; People v. Thomas, 86 Mich.App. 752, 759, 273 N.W.2d 548 (1978); People v. Battle, 71 Mich.App. 136, 144, 246 N.W.2d 389 (1976); People v. Iaconis, 29 Mich.App. 443, 457, 185 N.W.2d 609 (1971), aff'd sub nom People v. Bercheny, 387 Mich. 431, 196 N.W.2d 767 (1972).

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court held that affidavits supporting a search warrant may be based on hearsay information, which may come from an unnamed informant. Although the informant's identity need not be revealed, the affiant must state facts which allow the magistrate to independently judge the accuracy and reliability of the informant's information. There are two prongs to the Aguilar-Spinelli test regarding the reliability of an informant's information. The first prong of the test is satisfied if the informant's information is sufficiently detailed so that the magistrate can conclude that the information was based upon the informant's personal knowledge. The second prong of the test is satisfied by the affiant's statements regarding the informant's past reliability. Aguilar, supra, 378 U.S. 114, 84 S.Ct. 1514; Spinelli, supra, 393 U.S. 413, 89 S.Ct. 587. If the informant's information fails under this two-prong test, the magistrate must consider whether the affidavit contains other information which would corroborate the informant's information. Spinelli, supra, 415, 89 S.Ct. 588-589.

In the instant case, the affidavit contained a single statement of hearsay received from the unnamed informant. In the affidavit, the police officer stated that the informant told him that the informant's marijuana had been purchased from a subject in the trailer. Although the informant's statement may have been sufficient to satisfy the first prong of the Aguilar-Spinelli test, in that the informant had stated where the drugs were, the affidavit fails under the second prong of the test. The affidavit made no allegation that the informant was credible or that his information had proven reliable in the past. Without such a showing, therefore, the informant's information can only be used if independently corroborated.

We agree with the lower court's finding that there is nothing here to corroborate the informant's statement that he bought the drugs in the trailer. On the facts presented to the magistrate, it is just as likely that the informant took some of his own drugs from the trailer and gave them to the police.

Since the informant's statement fails under the Aguilar-Spinelli test, the affidavit must be considered as if the informant's statement were not included. See People v. Broilo, 58 Mich.App. 547, 552, 228 N.W.2d 456 (1975).

The affidavit described what is known as a "controlled buy". The informant was searched and found not to be in possession of drugs. While under constant police surveillance, the informant entered the trailer. When the informant returned to the police, he possessed drugs. On the basis of this evidence, the police had cause to believe that the informant got the drugs while in the trailer.

In People v. Ferguson, 94 Mich.App. 137, 288 N.W.2d 587 (1979), a substantially similar controlled buy was held to establish probable cause for a search warrant. See also People v. Davis, 72 Mich.App. 21, 248 N.W.2d 690 (1976). However, in both these cases, the credibility of the informant was demonstrated by the affiant because on numerous instances convictions had been obtained as a result of the informant's information. We are not convinced that a controlled buy alone is enough to establish probable cause for the issuance of a search warrant. There must be some indication of the reliability of the buyer-informant so that a conclusion that a purchase actually took place may be legitimately drawn.

Even if probable cause for the search warrant existed after the controlled buy, this does not mean that probable cause existed when the warrant was issued, approximately three days later. The passage of time is a valid consideration in deciding whether probable cause exists. People v. Gillam, 93 Mich.App. 548, 552, 286 N.W.2d 890 (1979). For a warrant to be issued, there must be a showing of reasonable cause to believe that illegal activity is occurring at the time of the warrant request. People v. Siemieniec, 368 Mich. 405, 407, 118 N.W.2d 430 (1962).

In Siemieniec, supra, the police officer's affidavit stated that defendant had illegally sold liquor four days earlier. The Court noted that the fact that defendant sold liquor four days earlier was not probable cause to believe that she was continuing to illegally sell liquor. The Court held that the affidavit must state that there is some sort of continuing illegal activity. Similarly, in Broilo, supra, the defendant made a drug sale to a police officer. Forty-two days after the second and final sale, the police officer obtained a search warrant. Citing to Siemieniec, the Court held that any probable cause which had existed when the drug sale was made was stale by the time the search warrant was obtained. The Court stated that when there is a substantial delay, no warrant may be issued unless there is a showing of continuing criminal activity.

The validity of the search warrant is to be decided on the facts given to the magistrate when the warrant is requested. We do not hold that a three-day delay renders an affidavit stale; however, in the case at bar, the affidavit alleged only a single sale, not continuing drug sales. The affidavit did not even state that defendant possessed any marijuana after he made the sale to the informant. On the facts presented to the magistrate, there is absolutely no evidence to suggest that defendant would still possess marijuana three days after the sale to the informant. We find that, whether extending great deference to the magistrate's determination of probable cause or reviewing that determination for an abuse of discretion, the circuit court properly held that the magistrate's decision to grant the search warrant was erroneous.

The people also argue that the exclusionary rule should not be applied when there is a good-faith violation of the Fourth Amendment. The people maintain that, since the purpose of the exclusionary rule is to deter police misconduct, the rule should not be applied when the deterrent effect would not be furthered, as in a case of good-faith mistaken behavior on the part of the...